IN THE CASE OF: 

		BOARD DATE:	    6 December 2012

		DOCKET NUMBER:  AR20120010154 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests his general discharge (GD) be upgraded to an honorable discharge (HD).  

2.  The applicant states, in effect, he never admitted guilt following a positive drug screen and his request to be retested was denied.  He states he has been living with this but now that his children are serving he would like to be able to show that he also served honorably.  

3.  The applicant provides no documentary evidence in support of his request. 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  After serving in the Army National Guard and U.S. Army Reserve (USAR) between 21 September 1978 and 11 May 1981, the applicant initially enlisted in the Regular Army on 12 May 1981.  On 2 March 1984, he reenlisted for 6 years.

3.  The record confirms the applicant was promoted to the rank of sergeant (SGT)/E-5 on 2 February 1984, and that this is the highest rank/grade he attained while serving on active duty.  It also shows he was reduced to the rank of specialist (SPC)/E-4 for cause on 2 September 1988.  

4.  The applicant's disciplinary record includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using marijuana on 26 July 1988.  

5.  On 28 September 1988, the unit commander notified the applicant of his intent to process him for separation under the provisions of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), chapter 14, by reason of misconduct – abuse of illegal drugs.  The unit commander specifically cited the applicant's wrongful use of marijuana on 26 July 1988 as the basis for taking the action.  

6.  On 30 September 1988, the applicant consulted with legal counsel and he was advised of the basis for the separation action, its effects, and of the rights available to him.  Subsequent to this counseling, the applicant completed an election of rights in which he waived his right to consideration of his case by and a personal appearance before an administrative separation board. 

7.  On 18 November 1988, the separation authority approved the applicant's separation action under the provisions of Army Regulation 635-200, chapter 14, for misconduct – abuse of illegal drugs, and directed the applicant receive a general discharge.  On 12 December 1988, the applicant was discharged accordingly.

8.  The DD Form 214 the applicant was issued at the time shows he held the rank/grade of SPC/E-4 on the date of discharge and that he completed a total of 7 years, 7 months, and 1 day of creditable active service.  It further shows he earned the Army Achievement Medal (2 Oak Leaf Clusters), Army Good Conduct Medal (2nd Award), Noncommissioned Officer Professional Development Ribbon (2nd Award), Army Service Ribbon, Overseas Service Ribbon, Expert Marksmanship Qualification Badge with Rifle Bar M-16, Air Assault Badge, Driver’s Badge, and Mechanic’s Badge. 

9.  There is no evidence indicating the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  Army Regulation 635-200 provides the policies, standards, and procedures for the separation of enlisted personnel from the Army.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.

11.  Paragraph 14-3 of the separation regulation contains guidance on characterization of service for members separated under chapter 14.  It states that an under other than honorable conditions discharge is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a general discharge if such is merited by the Soldier's overall record.  It further states a characterization of honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate.  An honorable discharge may be approved only by the commander exercising general court-martial jurisdiction or higher authority unless authority is properly delegated.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to upgrade his general discharge to an honorable discharge because he never admitted guilt to the offense and he was denied retesting has been carefully considered.  However, there is insufficient evidence to support his claim.

2.  Prior to discharge the applicant was advised of his rights.  If the applicant was not guilty of wrongfully using illegal drugs he could have requested a personal appearance before an administrative separation board, requested a trial by court-martial, or he could have appealed the nonjudicial punishment.  The applicant did neither.  The available evidence shows the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

3.  By regulation, an under other than honorable conditions discharge is normally appropriate for a member separated by reason of misconduct.  Clearly, the applicant’s wrongful use of illegal drugs, as evidenced by the NJP action he accepted for this offense, diminished his overall record of service below that meriting a fully honorable discharge.
4.  In view of the foregoing and absent evidence of error or injustice in the discharge process, there is an insufficient evidentiary basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X_____  __X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      ___________X____________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20120010154



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ABCMR Record of Proceedings (cont)                                         AR20120010154



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